Beyond Closing Guantanamo: Rebuilding a Transatlantic Partnership in International Law

By Atlantic Council

In one of his first acts as president, Barack Obama signed an executive order closing the Guantanamo Bay prison camp within a year. According to a new paper published by the Atlantic Council, Beyond Closing Guantanamo, this is a step in the right direction, but the new U.S. administration should undertake several additional measures aimed at restoring the United States as a leader in the international legal system.

The administration should start by enhancing existing legal cooperation between the United States and its European allies, including dialogues between justice ministers and among foreign ministry legal advisers. These talks have reduced transatlantic tensions by providing a forum for exchanging views, but it is now time to move beyond dialogue. The new administration, working with its European partners, can take the following steps to strengthen the international rule of law and demonstrate its commitment to the international legal system:

The Obama administration should identify a few key treaties and push strongly for ratification in an effort to demonstrate U.S. willingness to take a leading role in the development of international law. “Moving quickly to push for ratification of a few key treaties, namely [the Convention on the] Law of the Sea and [the Convention] on Biodiversity would help enormously in reassuring others of the U.S. commitment to international law,” according to William H. Taft IV, Council board member and former State Department legal adviser.

The United States should become a party to Additional Protocol I of the Geneva Conventions, which addresses the treatment of combatants and prisoners of war, and has been ratified by 165 countries. Based on the U.S. experience in Afghanistan, accepting the protocol would not be far from present practice, but it would send a very positive signal.

U.S. and European governments should adopt clear guidelines and non-binding codes of conduct regarding the treatment and detention of persons captured in armed conflict. All NATO states should ensure that their domestic legal systems provide jurisdiction over war crimes committed overseas by private military and security companies based in their territories.

The United States should continue to strengthen cooperation with the International Criminal Court (ICC), including by participating in the Special Working Group which seeks to define the crime of aggression and the conditions under which the ICC can exercise jurisdiction. The United States should stop efforts to convince others not to surrender U.S. personnel to the ICC, if warranted, and should review the American Service Members Protection Act.

The paper presents the conclusions of the Council’s Transatlantic Dialogues on International Law, co-chaired by William H. Taft IV, and Elizabeth Wilmshurst, associate fellow at Chatham House and former deputy legal adviser at the U.K. foreign office. The Dialogue brings together leading U.S. and European international lawyers, including several with foreign ministry experience.

The paper was published with the generous support of LexisNexis. The Transatlantic Dialogues on International Law, are sponsored by the German Marshall Fund of the United States, LexisNexis, and the Washington Delegation of the European Commission.